Shri Ashraph Korath Thadathil Vs M/S Tech Mahindra Co.

SHRI ASHRAPH KORATH THADATHIL, S/O SHRI MOHAMMED KUTTY KORATH THADATHIL, AGED ABOUT 47 YEARS, RESIDING AT SOUTH BAZAAR, KUTTIPURAM POST, KERALA-679571.

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…PETITIONER

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(BY MS. MAITREYI KRISHNAN, ADVOCATE FOR SRI. CLIFTON D ROZARIO, ADVOCATE)

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Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA

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AND:

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M/S TECH MAHINDRA CO. NO.44, P-45 AND P46, UNIT-2, 2^ND PHASE, KIADB INDUSTRIAL AREA, BENGALURU - 560100.

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…RESPONDENT (BY SRI SRINIVASA RAGHAVAN SR. COUNSEL FOR SMT TAMARRA SEQUEIRA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN REFERENCE NO.36/2018 BEFORE THE III ADDITIONAL LABOUR AND SET ASIDE THE IMPUGNED AWARD DATED 28.12.2018 IN REFERENCE NO.36/2018

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HC-KAR

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PASSED BY THE LD. III ADDITIONAL LABOUR COURT, BANGALORE PLACED AT ANNEXURE-A AND ETC.

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IN WP NO. 27918/2019:

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BETWEEN:

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SHRI. K SOUNDHARARAJU, S/O KALIMUTHU, AGED ABOUT 59 YEARS, R/A D NO.32, THULASIAMMAL LAYOUT LAKSHMIPURAM, PEELAMEDU, COIMBATORE-641 015.

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...PETITIONER

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(BY MS MAITREYI KRISHNAN, ADVOCATE FOR SRI CLIFTON D ROZARIO, ADVOCATE)

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AND:

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M/S. TECH MAHINDRA CO. NO.44, P-45 AND P46, UNIT -2, 2^ND PHASE, KIADB INDUSTRIAL AREA, BENGALURU-560100, REP. BY ITS MANAGING DIRECTOR.

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...RESPONDENT

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(BY SRI SRINIVASA RAGHAVAN, SR. COUNSEL FOR SMT TAMARRA SEQUEIRA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN REFERENCE NO.51/2018 BEFORE THE III ADDITIONAL LABOUR.SET ASIDE THE IMPUGNED AWARD DTD 28.12.2018 IN REFERENCE NO.51/2018 PASSED BY THE III ADDITIONAL LABOUR COURT, BANGALORE PLACED AT ANNX-A AND ETC.

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IN WP NO. 27919/2019:

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BETWEEN:

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SHRI. Y. VIJAY KUMAR, S/O Y MALA KONDAIAH,

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HC-KAR

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AGED ABOUT 49 YEARS, NO.35, ANANDA REDDY LAYOUT, 3^RD CROSS, PHASE - 2, ELECTRONIC CITY, BENGALURU - 560100, HAVING ITS PERMANENT ADDRESS AT C/O CH SHREERAMA PRASAD, GROUND FLOOR, VICEROY SAGAR APARTMENT, KOSAVANAHALLI, BANGALORE - 560035.

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...PETITIONER

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(BY MS MAITREYI KRISHNAN, ADVOCATE FOR SRI. CLIFTON D ROZARIO.,ADVOCATE)

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AND:

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M/S. TECH MAHINDRA CO. NO 44, P -45 AND P46, UNIT - 2^ND PHASE, KIADB INDUSTRIAL AREA, BENGALURU - 560100, REP BY ITS MANAGING DIRECTOR.

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...RESPONDENT

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(BY SRI SRINIVASA RAGHAVAN, SR. COUNSEL FOR SRI TAMARRA SEQUEIRA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN REFERENCE NO.37/2018 BEFORE THE III ADDL. LABOUR AND GRANT THE PETITIONERS THE FOLOWING RELIEFSSET ASIDE THE IMPUGNED AWARD DTD.28.12.2018 IN REFERENCE NO.37/2018 PASSED BY THE III ADDL. LABOUR COURT, BANGALORE PLACED AT ANNX-A AND ETC.

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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HC-KAR

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ORAL ORDER

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Heard the learned counsel appearing for the petitioner and the learned Senior Counsel appearing for the respondent.

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The petitioner in W.P.No.27920/2019 is assailing the Award dated 28.12.2018 passed in Reference No.36/2018, the petitioner in W.P.No.27918/2019 is assailing the Award dated 28.12.2018 passed in Reference No.51/2018 and the petitioner in W.P.No.27919/2019 is assailing the award dated 28.12.2018 passed in Reference No.37/2018 on the file of III Additional Labour Court, Bengaluru, wherein the petitioners disputes under Section 10(1)(c) and (d) of the Industrial Disputes Act, 1947 (for short 'Act of 1947') are rejected.

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The Labour Court, in terms of impugned award has held that the petitioners are not workmen and also held that the petitioners have voluntarily resigned and there is nothing on record to accept the contention that the resignation is extracted by force or coercion. Accordingly, the references are rejected.

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HC-KAR

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Learned counsel appearing for the petitioner in W.P.No.27918/2019, referring to the facts of the case, would submit that petitioner, who is a Software Engineer by qualification and who worked in the respondent-Company for 10 years was asked to resign by the Human Resource Manager. Apprehending the termination without any enquiry and consequences flowing from that, the petitioner resigned under duress on 23.05.2017 and later, he was allowed to work till 30.06.2017 and thereafter, relieved from the services.

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The petitioner raised a dispute within a month from the date of relieving and the dispute was referred to the Labour Court. Labour Court, without considering evidence on record, has erroneously concluded that the petitioner is not a workman and also erroneously concluded that the petitioner has failed to establish his contention that his resignation was forcibly extracted.

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Learned counsel for the petitioner would also submit that materials on record which would clearly demonstrate the circumstances under which the petitioner's resignation was forcefully extracted, have not been considered

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by the Labour Court. It is also her contention that in the absence of evidence suggesting that the petitioner was working in managerial capacity, the Labour Court has erroneously has come to the conclusion that the petitioner is not a workman. It is submitted that the petitioner was not reporting to anyone and he was discharging his duties under the directions of the Superior, which would demonstrate that he was a workman and not an employee working in a managerial position.

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It is further submitted that though the dispute is raised within one month from the date of relieving, the Labour Court has erroneously held that the petitioner has raised dispute after one year and thereby, the Labour Court has committed error in rejecting the petitioner's reference.

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Learned Senior Counsel appearing for the

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respondent, on the other hand, would submit that the Labour Court is justified in dismissing the petitioner's reference on the premise that there was no material to hold that the resignation is not voluntary. It is his submission that the resignation was tendered on 23.05.2017 and thereafter, the petitioner received a response stating that he will be relieved on 30.06.2017 and

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later, there was one more communication intimating that he will be relieved on 15.06.2017 to which the petitioner responded making a request that he be permitted to work till 30.06.2017 and all these circumstances would clearly state that the petitioner's resignation was voluntary.

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It is also his contention that the petitioner is a qualified Software Engineer and the allegation that the petitioner was forced to resign cannot be accepted and no material is placed on record to substantiate such contention. The entire burden of proving alleged forcible resignation is on the petitioner.

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It is also urged that correspondence made by the petitioner through e-mail would suggest that the petitioner sought extension of time, once upto December, 2017 and later upto 30.06.2017, which would suggest that the petitioner was not forced to resign. Assuming that the Human Resource Manager had requested or insisted the petitioner to resign, the petitioner was not required to resign or could have refused to

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resign. However, the petitioner opted to resign, and his resignation is rightly considered as voluntary. It is also urged

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that the petitioner has received all the service benefits after he being relieved and also documents and this would suggest that he has voluntarily resigned. There are no materials to interfere with the award passed by the Labour Court in exercise of jurisdiction of under Article 227 of the Constitution of India, is the submission.

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Learned counsel for the petitioner, by way of reply, submits that the resignation has to be understood in the context and resignation should be voluntary and e-mail sent by the petitioner itself would indicate that the resignation is tendered because of insistence by the Human Resource Manager and this aspect has not been appreciated by the Labour Court.

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The documents placed on record would reveal that the petitioner on 12.05.2017 has sent an email stating that he has been asked to resign by the Human Resource Manager. The said email would indicate that the petitioner requested to continue his services till the end of the calendar year. In the alternate, he also made a request that he should be allowed to continue till the end of June - 2017. The records would reveal

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that the petitioner was asked to continue till the end of June 2017 and later there was one more correspondence asking the petitioner to exit by 15^th June 2017. The petitioner has again responded to the said change in the date of exit, bringing it to the notice of the concerned person, stating that he was asked to exit by end of June 2017, later was asked to exit by 15^th June 2015 itself. Citing this circumstances, it is urged by that resignation is not voluntary. The resignation, is said to be in the context of threat given by the officials of the respondent - Company who allegedly threatened that the petitioner will not be given necessary certificate and that his employment in software industry will be blocked.

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It is relevant to note that after the exit on 30.06.2017, the petitioner has received his two months wages which was not otherwise payable in terms and conditions of the employment. However, he has accepted without any protest. Thereafter, dispute is raised.

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Admittedly, the petitioner is a qualified Engineer working in software industry with 10 years experience. The resignation letter is generated after the petitioner clicking

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relevant dropdown icons on the system. The resignation so submitted would indicate that the petitioner is resigning to pursue a different career. Though the dispute is raised on the premise that the resignation is not voluntary and on account of threat, even assuming that the petitioner has resigned as asked

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by the Human Resource Manager would not lead to the conclusion that there was a threat. This is more so given the petitioner's experience and qualification.

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Moreover, the communication addressed by the petitioner who sought time till December, 2017 and later till June end would indicate that there was no threat of dismissal as alleged. It is also relevant to note that the petitioner had enough time from 12.05.2017 to 30.06.2017 to raise a protest in case his resignation was not voluntary.

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Learned counsel for the petitioner has relied on the following judgments of the Hon'ble Apex Court to substantiate the contention that the case has to be understood on the context of the law laid down by the Hon'ble Apex Court as to whether the resignation is voluntary or on account of hostile and adverse atmosphere created in the work place.

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(i) Devinder Singh vs. Municipal Council, sanaur¹

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(ii) Pam Network Ltd. vs. B.Balakrishna²

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(iii) The Commissioner of Income Tax LTU and Ors. vs. Texas Instruments India Pvt. Ltd and others.³

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(iv) Ms. X vs. Registrar General, High Court of Madhya Pradesh and Anr.⁴

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(v) Southern Roadways (Pvt.) Ltd., Bangalore vs. K.Padmanabhan and another⁵ .

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(vi) Yeotmal District Central Co-operative Bank Ltd. vs. Ramchandra Wamanrao Deshpande and Anr.⁶

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(vii) Shriram Swami Shikshan Sanstha vs. Education Officer, Zilla Parishad, Nagpur and Another⁷

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(viii) Surva (R.D) Bombay vs. Tata Iron and Steel Company Ltd Bombay and others.⁸

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(ix) Suresh Kumar vs. Sainik School Society and Ors.⁹

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(x) Vice Chancellor, Sri Padmavathi Mahila Vishwavidyalam, Tirupathi and Ors. vs. Prof V.N.Das¹⁰

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(xi) Dr.Prabha Atri vs. State of U.P. and Ors.¹¹

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(xii) The K.C.P.Employees' Association, Madras, vs. Management of K.C.P Ltd., Madras and Ors.¹²

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(xiii) Workmen vs M/s Williamson Magor and Co. Ltd and another.¹³

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1 (2011) 6 SCC 584

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2 ILR 2010 Karnataka 3539

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3 (2021) 435 ITR1 (Kar)

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4 (2022) 14 SCC 187

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5 1979 Lab IC 234

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6 1978 Lab IC 1321

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7 1984 Mah LJ 31

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8 1988 I LLN 96

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9 2018 SCC Online HP 2187

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10 2001 (4) LLN 1006(AP)

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11 (2003) 1 SCC 701

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12 (1978) 2 SCC 42

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This Court is of the view that the law laid down in the aforementioned judgments is in the backdrop of the facts obtained in the said cases. Said factual background is way different from the facts obtained in the present case.

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There is not enough material on record to hold that the resignation was not voluntary or on account of certain other circumstances which compelled the petitioner to forcibly resign. The only inference which is forthcoming from the records placed before the Court is that the petitioner was asked to resign by Human Resource Manager and the petitioner resigned. Even if it is accepted that the petitioner resigned as asked by the Human Resource Manager, one cannot conclude that it is a forcible resignation given the petitioner's qualification and experience.

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It appears that the petitioner has tried to bring to the notice of 1 or 2 other officials in the Company that he was asked to resign, that by itself is not sufficient to come to a conclusion that the petitioner's resignation is not voluntary or is

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13 (1982) 1 SCC 117

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it the account of coercion and force exerted on the petitioner as alleged.

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Under these circumstances, this Court is of the view that the finding recorded by the Labour Court that the resignation is not on account of force or coercion cannot be a perverse finding so as to interfere in exercise of jurisdiction under Article 227 of Constitution of India.

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The Labour Court has also concluded that the petitioner is not a workman. This Court having recorded a finding that, it is the case of the voluntary resignation need not go into the correctness of the question whether the finding recorded by the Labour Court that the petitioner is not.

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W.P.No.27919/2019

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In the aforementioned petition, the facts are almost similar to the one discussed above. The petitioner in Writ Petition No.27919/2019 tendered resignation on 22.05.2017 and it was accepted on 23.05.2017 and on 16.06.2017, petitioner received the relieving certificate.

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In his resignation letter, the petitioner has stated that he is resigning to pursue higher studies. The petitioner has collected two months wages payable to him and the dispute is raised on 20.07.2017. Considering the aforementioned circumstances, this Court is of the view that the materials placed on record, the pleading are not sufficient to arrive at a conclusion that the resignation was extracted from the petitioner by the respondent-Management under duress or coercion. The Labour Court has taken a view based on materials available on record and said view is certainly a plausible view and is not capable of correction in exercise of jurisdiction under Article 227 of the Constitution of India.

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WP No. 27920 of 2019

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In Writ Petition No.27920/2019, the petitioner resigned on 25.05.2017. The resignation was accepted on 31.05.2017 and on 12.07.2017, petitioner received the relieving certificate. In his resignation letter, the petitioner has mentioned that he intends to relocate. Evidence is also placed on record to hold that the petitioner was later employed in some other establishment. Again it is noticed that from 25.05.2017 till 12.07.2017, the petitioner did not raise any

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protest to say that the resignation was extracted under duress, force or coercion. The view taken by the Labour Court is based on acceptable materials and supported by reason and logic. This Court does not find any reason to interfere with the findings of the Labour Court moreso, in exercise of jurisdiction

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under Article 227 of the Constitution of India.

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25. Accordingly, the Writ Petitions are dismissed .

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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GVP List No.: 1 Sl No.: 34

Shri Ashraph Korath Thadathil v. M/S Tech Mahindra Co.

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Shri Ashraph Korath Thadathil v. M/S Tech Mahindra Co.

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